Wednesday 28 June 2017

Woman sexually abused as child loses appeal over €493k damages

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Stock Picture

Aodhan O'Faolain

A woman has lost her Supreme Court appeal against the overturning of a €493,000 damages award to her by a High Court jury after it found a relative sexually assaulted her when she was a child.

A five judge Supreme Court today unanimously upheld a Court of Appeal decision to overturn, on grounds of "inordinate and inexcusable" delay in prosecuting the case, the damages award made in late 2014 to Caroline McNamee.

Ms McNamee (41), Mullingar, Co Westmeath, now living in England, claimed Michael Boyce (71), a farm labourer from Rathconrath, Mullingar, began sexually assaulting her from the age of four and the alleged sexual assaults continued until 1992.

After she made a complaint to gardai in 1995, Boyce was tried in the Circuit Court in 1999 on six counts of sexual assault and convicted in relation to one. His appeal against that conviction was dismissed.

Ms McNamee's High Court civil case against Boyce was initiated in 2001 with a statement of claim served in August 2011.

It was heard before a judge and jury in November 2014 after two High Court judges - in 2012 and at the outset of the trial -  refused Boyce's application to halt it on delay grounds.

After the jury awarded Ms McNamee €493,037, Boyce appealed, claiming the High Court should have dismissed the case and he was particularly prejudiced by delay for reasons including his wife Helen had died in 2005 and could not give important evidence.

The High Court found any prejudice to him could be overcome by having a transcript of what his wife said in the criminal trial admitted as evidence in the civil case. It had earlier ruled certain allegations, after 1985, were statute barred.

Last year, a three judge Court of Appeal unanimously found the High Court erred in not dismissing the proceedings.

The Supreme Court later permitted Ms McNamee appeal against the COA decision.

Giving the Supreme Court judgment dismissing her appeal, the Chief Justice, Ms Justice Susan Denham, said it was not at issue there was "inordinate and inexcusable" delay in prosecuting this case.

That delay was "largely unexplained", created a real risk of prejudice for reasons including the death of Boyce's wife and the balance of justice was against allowing the case proceed, she held.

The plenary summons was issued in June 2001, almost nine years after the last alleged assault and 22 years after the first, she noted.  While the court was aware of the difficulties sexual abuse victims have in making complaints, Ms McNamee complained to the Garda in 1995 and gave evidence in a criminal trial which ended in 1999.

As of 2001, there was no obvious reason why the civil proceedings, issued that year, could not have been prosecuted with diligence, she said. Instead, 18 months elapsed before the plenary summons was even served and the "basic step" of statement of claim was not served for another eight and a half years.

Boyce's wife died in 2005, four years after the plenary summons issued, and he also raised the absence of another potentially important witness who had also died, she noted.

While the High Court said a transcript of Boyce's wife evidence in the criminal case could be read to the jury, that was not the same as live evidence although in some cases it may be the best that can be done.

The plaintiff's delay was the reason potentially important defence evidence had to be presented in a "less than satisfactory" way.

She also said the trial judge was placed in an "impossible position" because the application to halt the trial was made at its outset, before evidence; Boyce had not appealed the earlier High Court refusal of 2012 to halt it and there was no change in circumstances. It was "hard to see" how the trial judge could have come to a different conclusion without hearing any evidence.

It was important to note there was no issue of Ms McNamee not being able to face or remember the events subject of the proceedings, she also said.

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